[kictanet] Notice of Implementation Date for WHOIS National Laws Procedure -- Registrars please read]

[alice]

Notice of Implementation Date for WHOIS National Laws Procedure

18 December 2007

* * Today ICANN is publishing a notice of implementation of the ICANN 
Procedure for Handling WHOIS Conflicts with Privacy Law. The procedure 
will be posted for 30 days, and implemented on 17 January 2008. The 
draft procedure was first posted for comment on 3 December 2006, see 
http://gnso.icann.org/issues/whois-privacy/whois_national_laws_procedure.htm 
<http://gnso.icann.org/issues/whois-privacy/whois_national_laws_procedure.htm>. 
ICANN sought input on the draft procedure from the Governmental Advisory 
Committee (GAC).

The procedure has been revised to incorporate advice from the GAC, and 
is available at 
http://gnso.icann.org/issues/whois-privacy/revised-draft-whois-procedure-18dec07.pdf 
[PDF, 29K]. New language has been inserted into Sections 1.4, 2.1, 3.1 
and 5.1 of the procedure, based on input received from the GAC and from 
members of the ICANN Board in the Los Angeles meeting. The ICANN Board 
discussed the draft procedure during the public meeting of the Board on 
2 November 2007 in Los Angeles, and noted that "the next step now would 
be for the staff to update their procedure in taking into account that 
advice [from the GAC]."

The procedure describes how ICANN will respond to a situation where a 
registrar or registry indicates (and seeks to demonstrate) that it is 
legally prevented by local/national privacy laws or regulations from 
complying with the provisions of its ICANN contract regarding the 
collection, display and distribution of personal data via WHOIS. The 
procedure is for use by ICANN staff. While it includes possible actions 
for the affected gTLD registry or registrar, this procedure does not 
impose any new obligations on registries, registrars or third parties. 
It aims to inform gTLD registries, registrars and other parties of the 
steps to be taken when a possible conflict between other legal 
obligations and the ICANN contractual requirements regarding WHOIS is 
reported to ICANN.

Since publication of the first draft procedure, ICANN staff has been 
applying the draft procedure in handling potential conflicts between 
WHOIS provisions and national laws to test its effectiveness.

* Background*

In December 2003, the Whois Task Force 2 of the GNSO recommended the 
development of a procedure to allow gTLD registry and registrars to 
demonstrate when they are prevented by local laws from fully complying 
with the provisions of ICANN contracts regarding personal data in Whois.

In November 2005, the GNSO concluded a policy development process on 
establishing such a procedure. The policy includes 'well-developed 
advice on a procedure' created through: extensive solicitation of 
community comment, recommendation by the WHOIS Task Force, and approval 
by the GNSO Council. In May 2006, the ICANN Board adopted the policy and 
directed ICANN staff to develop and publicly document a conflicts procedure.

The draft ICANN Procedure for Handling WHOIS Conflicts with Privacy Law 
(http://gnso.icann.org/issues/whois-privacy/whois_national_laws_procedure.htm) 
was published on 3 December 2006. ICANN sought input on the draft 
procedure from the Governmental Advisory Committee (GAC). On 28 March 
2007, the GAC published its Principles Regarding gTLD WHOIS Services 
(http://gac.icann.org/web/communiques/gac27com.pdf [PDF, 209K]). GAC 
Principle 3.2 states that "gTLD WHOIS services must comply with 
applicable national laws and regulations."

The GAC Communique from 28 June 2007 
(http://gac.icann.org/web/communiques/gac28com.pdf [PDF, 177K]) included 
specific reference to the draft procedure:

"The GAC welcomes the opportunity to respond to the 'draft ICANN 
Procedure for Handling WHOIS Conflicts with Privacy Law.' Since this 
draft procedure was produced in December 2006, the GAC has prepared its 
'Principles regarding gTLD WHOIS Services.' These principles provide the 
framework for dealing with potential conflicts.

"We recognise the importance of effective conflict resolution mechanisms 
for the WHOIS regime, and we expect to see this as an integral part of 
the GNSO proposals for a future ICANN WHOIS regime.

"We will provide formal advice on the conflict procedures based on the 
GAC WHOIS principles at the meeting in Los Angeles. The GAC recommends 
that the Board reviews the draft procedure in light of this substantive 
contribution.

"In the interim, specific cases should be referred to the relevant 
national government for advice on the authority of the request for 
derogation from the ICANN gTLD WHOIS policy."

The GAC Communique issued on 31 October 2007 in Los Angeles 
(http://gac.icann.org/web/communiques/gac29com.pdf [PDF, 73K]) noted that:

"the GAC welcomes the opportunity to respond to the 'draft ICANN 
Procedure for Handling WHOIS Conflicts with National Privacy Laws.' Due 
to the complexity of this issue related to the diversity of national 
policies and procedures among GAC members the GAC does not believe a 
uniform process is workable and accordingly the interim solution from 
the GAC's San Juan communiqué should be the basis for resolving any 
potential conflict:

. specific cases should be referred to the relevant national government 
for advice on the authority of the request for derogation from the ICANN 
gTLD WHOIS policy."

On 2 November 2007, the ICANN Board noted that staff would update the 
procedure to incorporate GAC advice 
(http://losangeles2007.icann.org/files/losangeles/LA-BoardofDirectors(Part1)-2NOV07.txt 
<http://losangeles2007.icann.org/files/losangeles/LA-BoardofDirectors%28Part1%29-2NOV07.txt>). 
The revision described in this notice reflects the input received since 
the publication of the draft procedure on 3 December 2006.

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